Heptonstall v Gaskin & Ors (No 2) [2005] NSWSC 30

Heptonstall v Gaskin & Ors (No 2) [2005] NSWSC 30

Leave is granted to the plaintiff to amend his Statement of Claim to plead an implied term of mutual trust and confidence in the contract of employment, as the existence and scope of such a term in Australian law is arguable and should be determined at trial rather than dismissed as futile at this stage.

Parties
Plaintiff: Gregory Heptonstall; First Defendant: Brian Gaskin; Second Defendant: Sharlene Hutcherson; Third Defendant: State of New South Wales
Jurisdiction
Australia
Judgment Date
09 February 2005
Procedural Posture
Application to Amend Statement of Claim / Interlocutory Application; Amendment of Pleading
Outcome
Leave given to Plaintiff to amend Amended Statement of Claim
Legal Topics
Implied Terms in Employment Contracts, Mutual Trust and Confidence, Leave to Amend Pleadings, Strike Out Application, Procedural Fairness
Employment Law Contract Law Implied Terms in Employment Contracts Mutual Trust and Confidence Leave to Amend Pleadings Strike Out Application Procedural Fairness

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Parties

Gregory Heptonstall

Plaintiff

Brian Gaskin

First Defendant

Sharlene Hutcherson

Second Defendant

State of New South Wales

Third Defendant

Procedural Posture

Application to Amend Statement of Claim / Interlocutory Application; Amendment of Pleading

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend the Amended Statement of Claim to plead an implied term of mutual trust and confidence in the contract of employment.
  2. 2 Whether the proposed amendment would be futile because such implied term is not part of Australian law or is inconsistent with the Teaching Services Act.

Ratio Decidendi

Leave is granted to the plaintiff to amend his Statement of Claim to plead an implied term of mutual trust and confidence in the contract of employment, as the existence and scope of such a term in Australian law is arguable and should be determined at trial rather than dismissed as futile at this stage.

Court Disposition

Leave given to Plaintiff to amend Amended Statement of Claim

Orders

  • Plaintiff granted leave to amend Statement of Claim in accordance with 'Second Further Amended Statement of Claim'.
  • Costs reserved pending further submissions.